Wednesday, September 20, 2017

Elizabeth Bartholet

Abstracted from: Elizabeth Bartholet, Creating a Child-friendly Child Welfare System: Effective Early Intervention to Prevent Maltreatment and Protect Victimized Children, 60 Buffalo Law Review 1323 (December, 2012) (151 Footnotes)


You might think that the child welfare system would be child friendly. After all, its name proclaims its focus on child well-being, and those in the system regularly talk as if the child's best interest is their guiding principle. Fifty states have laws making state child protective services agencies responsible for protecting children against maltreatment by their parents.

But the child welfare system actually focuses not on child welfare but rather on adult rights and interests— parental autonomy rights to raise children without intervention by the state and related racial and other group rights to control the fate of the group's children. Federal and state constitutions help shape this regime by giving parents constitutional rights to parental autonomy, while denying children any comparable constitutional rights to be raised by nurturing parents, free from maltreatment. This constitutional scheme, in turn, shapes interpretation of child protection laws in ways that limit the state's ability to intervene to protect children.

Child welfare policy-makers work within the considerable discretion law leaves them, shaping policy in ways even more inconsistent with actual child welfare. Over recent decades, they have regularly promoted family preservation policies as the primary response to child maltreatment.

By family preservation policies, I refer to the broad range of policies that emphasize parents' right to keep their children, limit state intervention to extreme demonstrations of parental unfitness, require state efforts to rehabilitate parents before children can be removed, or parental rights terminated even in cases where such rehabilitation efforts seem hopeless, and limit consideration of children's best interests including their need for nurturing parenting from early infancy on. The term “family preservation” is sometimes used narrowly to refer to the Intensive Family Preservation Services (IFPS) programs I discuss in Part II, but I see those IFPS programs as but one example of family preservation policies that characterize the entire child welfare system, placing a very high emphasis on keeping children with their parents.

Child welfare policy-makers have also regularly sponsored research designed to vindicate family preservation policies, without adequate regard for whether children might be better served by policies which more readily removed them from maltreating parents and placed them with nurturing adoptive families. While the child welfare field seems to place a high value on research and ““evidence-based practice,” research has often been designed and manipulated to serve a predefined ideological agenda. There is, of course, much excellent research in the field, and I have relied extensively on such research throughout my career as an academic in this area, including in this Article. Nonetheless, I believe that there has been an unfortunate tendency for much of the research in the field simply to promote family preservation, rather than illuminate the degree to which family preservation may or may not serve child interests.

While policy-makers regularly claim that family preservation policies are designed to serve children's interests, there is good reason to think that, actually, children would generally be better served by policies encouraging child protection workers to intervene earlier and more often to remove victimized children from maltreating parents, to terminate parental rights, and to place children in adoption. Despite the fact that child welfare research has generally been biased in the direction of vindicating family preservation, a wide range of persuasive studies indicate that reducing the emphasis on family preservation would improve children's prospects for health and happiness. For example, we know from early brain development research that nurturing parenting in the early months and years is vital to normal development. We know that children victimized by maltreatment are at a very high risk for repeat maltreatment if kept at home—roughly one-third to one-half or even more will be revictimized. We know that children removed to foster care are at very low risk for maltreatment—much lower than the risk for those identified as victimized who are kept at home or those returned home from foster care, though higher than the risk for those adopted. We know that children placed in adoption will likely receive superior parenting—the adoptive parent maltreatment rate is lower than the norm for the general population. We know that most adopted children do very well, with those who have suffered significant damage pre-adoption helped to repair the damage. And we know that children placed earliest in adoption will have the best chance for healthy development.

Child welfare research is generally designed to serve the dominant parental autonomy ideology in the early intervention area—the focus of this Article— just as it has been more generally. Thus, such research generally measures success in terms of the degree to which programs succeed in achieving family preservation, avoiding questions as to whether children victimized very early in life do better if kept at home, as compared to being removed before too much damage is done and placed in adoption at an early age.

This Article grows out of my work over the past three decades and focuses in particular on two recent conferences sponsored by the Harvard Law School Child Advocacy Program that I direct. The first was on a topic known as “Racial Disproportionality.” A powerful coalition of foundations and nonprofits called the Casey Alliance had taken the position that racial discrimination by mandated reporters and Child Protective System (CPS) workers was responsible for the large number of black children in foster care. They called for a reduction in the number of black children removed to foster care, so that their percentage of the foster care population would match their percentage of the general population. We cosponsored a conference at Harvard Law School with Chapin Hall at the University of Chicago in January, 2011, designed to present the best recent social science assessing whether black child removal rates actually did reflect discrimination as opposed to high rates of parental maltreatment. The research presented demonstrated that black children were, in fact, maltreated at much higher rates than white children, as would be expected given socioeconomic differences between black and white families and other established predictors for maltreatment. The research showed that official reporting and removal rates closely tracked actual maltreatment rates, indicating that while there might be pockets of discrimination within the system operating in different racial directions, there was no overall pattern of discrimination. The conference also revealed that those promoting the Racial Disproportionality Theory had been using a seriously misleading research report to persuade others of the truth of their discrimination claim.

Those of us responsible for organizing the Racial Disproportionality Conference coauthored a paper summarizing its significance, which concluded that future reform work should focus on doing more to protect both black and white children against maltreatment:

We hope that this conference will mark an important turning point. Given the considerable evidence of a black/white maltreatment gap, the field needs to focus more attention on the problems facing black families and their children, and the related risks to black children victimized by maltreatment and in need of protection and services. It needs to pay more attention to the high rates of maltreatment among children of all races and ethnicities growing up in poverty. It needs to pay more attention to the harmful developmental impact of maltreatment, and the importance of developing more and better programs designed to prevent maltreatment and provide protective services.

This conclusion was consistent with views I had set forth in an earlier article entitled The Racial Disproportionality Movement: False Facts and Dangerous Directions. There, I argued that the movement's call for a reduction in the number of black children removed to foster care posed a danger, given the evidence that these children were being removed not because of discrimination but because of serious maltreatment. I argued that “those who care about black children [should] do something more to protect them against abuse and

A recent report on a research workshop sponsored by the Institute of Medicine and the National Research Council (hereinafter the IOM/NRC Research Workshop Summary) helps demonstrate just how high maltreatment rates are, particularly for black children. “[A]bout 1 in 7 children between the ages of 2 and 17 [are] victims of child maltreatment during a 1-year time Rates of black child maltreatment are much higher: 49% of black children in a Cleveland study were reported as victims of maltreatment by their tenth birthday, and one-third of black children in a California study were reported by their fifth birthday.

In May 2012, our Child Advocacy Program sponsored a “Prevention & Protection Brainstorming Workshop” as the logical follow-up to the Racial Disproportionality Conference. We invited leaders in the child welfare field to present and discuss promising reform proposals and programs designed either to prevent maltreatment from occurring in the first place or to provide earlier and more effective protection to children already victimized by maltreatment.

This workshop took as a given that actual maltreatment rates were indeed too high for all children and particularly for black children. Our goal was to explore how we might reduce maltreatment for all children, black and white. Our belief was that success in reducing maltreatment would serve the interests of black children far better than simply reducing black removal rates.

Our assumption was that programs that succeeded in preventing maltreatment from ever occurring would, in any event, likely reduce the rate at which black children were removed. However, programs which intervened more aggressively to protect children already victimized might well result in higher removal rates, and to the degree black children were at higher risk they would then be removed at higher rates. Accordingly, it is hard to predict how early prevention and protection efforts would net out in terms of the impact on black removal and foster care rates. Our belief was that the focus should, in any event, be on doing better at protecting all children from maltreatment, whether that reduced or increased the rate of black versus white child removal.

This workshop helped illustrate that we could indeed do better by children if we chose to. We could provide new parents the kinds of support they need to maximize the chances they will succeed at parenting. We could make coercive CPS systems work better to protect children who have been maltreated.

But the workshop also revealed the ongoing power of the parental autonomy ideology, and the constraints it puts on promising reforms in this area. For example, the intensive health visitation systems that have shown promise in preventing maltreatment fail to reach many of the families most at risk for maltreatment. This is because these systems depend on parents volunteering to participate. Health visitation proponents have resisted any suggestion that systems be made mandatory. They argue that mandatory programs would not work as well, but it seems likely that a significant part of the resistance has to do with respect for parent autonomy rights. Family drug court programs have the potential to protect some of the children most at risk for maltreatment by requiring that parents cooperate with drug treatment regimens or risk losing their children. But most drug court programs pride themselves on keeping children with their original parents if at all possible, rather than on giving children nurturing parental care as early in life as possible, whether with their original or adoptive parents.

The workshop also revealed how the research that is supposed to assess the pros and cons of policy initiatives in the early intervention area is itself limited by the parental autonomy ideology. Several workshop participants described research equating program success with success in keeping more children at home. There was no discussion of research assessing whether such family preservation counted as success from the child's perspective—how children kept at home fare in terms of maltreatment and various well-being measures as compared to children removed to foster care and moved on relatively promptly to adoption.

Henry Kempe is famous for his 1962 article The Battered Child Syndrome, which helped create nation-wide reporting systems bringing maltreated children to the attention of CPS authorities. He wrote another article that has received much less attention, but could be similarly transformative, if policy-makers were receptive. Titled Approaches to Preventing Child Abuse, it was published in 1976. It calls for a truly universal health visitor system guaranteeing each child's right to grow up healthy and free from abuse, regardless of whether parents agree to be visited or not, and it calls for a child's right to “divorce” from parents incapable of parenting:

[W]e must now insist that each child is entitled to effective comprehensive health care, and that when parents are not motivated to seek it, society, on behalf of the child, must compel it. It seems incomprehensible that we have compulsory education, with truancy laws to enforce attendance and, I might add, imprisonment of parents who deny their child an education, and yet we do not establish similar safeguards for the child's very survival between birth and age 6....

We must [work with problem families] first by persuasion and education and trying to be as helpful as we can, but if that fails, we must initiate active intervention through child protection services....

When marriages fail, we have an institution called divorce, but between parent and child, divorce is not yet socially sanctioned. I suggest that voluntary relinquishment should be put forth as a desirable social act—to be encouraged for many of these families. When that fails, legal termination of parental rights should be attempted. However, such termination is a difficult thing to achieve in our country In my state of Colorado, for example, parents must be proved to be untreatable, and remain so, before the state will uphold terminations by our juvenile court judges, a process that could take five to ten years. But each child is on a schedule of his own emotional development. He doesn't give us the luxury of waiting five years. He needs loving parents right now, and the same parents, not a series of ten foster homes. For 20 years, courts have lectured me on the rights of parents, but only two judges in my state have spoken effectively on the rights of children....

The really first-rate attention paid to the health of all children in less free societies makes you wonder whether one of our cherished democratic freedoms is the right to maim our own children. When I brought this question to the attention of one of our judges, he said, “That may be the price we have to pay.”Who pays the price? Nobody has asked the child....

Let us now resolve to fight for [our children's] total civil rights. Let us not, I beg of you, settle for anything less.

Henry Kempe's challenge remains as relevant today as it was in 1976. If we truly value children, if we believe they are as entitled as adults to have their rights and interests taken into account, we should transform our child welfare system. We could create a system that does a much better job at preventing maltreatment in the first instance and protecting already victimized children against further maltreatment. We could create a system designed to give children the nurturing parenting they need early in life to grow up healthy with a fair chance at future happiness. But it won't be easy because our current system is built on ideas about parental rights and individual autonomy that are deeply entrenched.

* * *


If we placed as high a value on child rights as on adult rights, it seems clear we would change our child welfare policy. We would find the high rates of maltreatment and high recurrence rates when maltreated children are kept at or returned home, unacceptable.

The risks that we regularly subject children to would not be considered acceptable for adults. We systematically require maltreated children to stay at home when we can predict that one-third to one-half or more of them will be revictimized. We would not try to coerce or even advise adult victims of domestic violence to stay home at similar risk. We systematically send infants born drug-affected home to the parents who continue to abuse drugs. We would not counsel adults to marry partners who are addicted to drugs and have already done them harm equivalent to the harm suffered prenatally by these infants.

If we genuinely wanted to know how our current policies and various proposed reforms affected children, we would also design research so that it illuminated this issue. We would try to compare how children do when kept at home, or returned home, as compared to how they would do if moved on to adoption early in life. Instead, most research today is designed simply to validate policy directions chosen on the basis of parental autonomy ideology. Research generally looks only at the narrowest questions: Do programs designed to keep children at home succeed in doing so? Are children kept at home with services safer than those kept at home without services? Are children kept at home with services as well off as those kept in foster limbo, bounced around from one foster home to another, and in and out of the original home?

At the workshop some noted the difficulty of structuring research to compare how well family preservation works for children, given that we can't ethically experiment with children in the interest of designing “gold-standard” social science, by randomly choosing some to keep at home, some to move to foster care, and some to move on to adoption. But the challenge of designing social science studies in the child welfare area provides no excuse for limiting our programs and our research in ways that simply provide justification for programs that put children at obvious risk. Researchers determined to do the best they could to honestly assess whether children would fare better if family preservation priorities were reduced could devise research that would illuminate the issue.

Researchers may feel limited by the law surrounding child welfare. As noted at the opening of this Article, constitutional and statutory law protect parental autonomy, limit child rights, prioritize family preservation, and limit states' ability to protect children.

But child welfare policy-makers have generally promoted family preservation in ways that go far beyond the requirements of law. The reform movements discussed above—Family Group Decision Making, Intensive Family Preservation Services, Differential Response, and Racial Disproportionality—were not required by law but were instead initiated by child welfare policy-makers.

And law is not fixed in stone. The United States had no laws protecting children against child maltreatment until the latter half of the nineteenth century. We had no reporting system for maltreatment until the latter half of the twentieth century. The Federal Constitution has no language specifically recognizing parent or child rights. Parental rights were found by the U.S. Supreme Court in vague Fourteenth Amendment “due process” language only in the early twentieth century. The Court could decide one day to find child rights to nurturance and protection in that or some other place in the Constitution. It could decide to limit constitutional protection for parental rights, giving states more freedom to protect children, as indeed appears to some degree to have been happening. The United States could decide to ratify the Convention on the Rights of the Child, as every other nation in the world but Somalia has done. This Convention gives children full human rights status, equivalent to adults, and ratification would push the United States in the direction of fuller recognition of child rights to nurturance and protection. Our statutory law, federal and state, has changed in recent decades in a significantly more child-friendly direction. Congress has enacted ASFA and important CAPTA amendments, as discussed above. It has eliminated what were very significant racial barriers to the adoption of children out of foster care. State and local jurisdictions have developed laws and policies limiting family preservation excesses and promoting timely adoption placements.

Law changes in response to felt needs and new learning. Child welfare policy-makers and researchers have the responsibility to educate the courts and legislatures about children's needs for nurturing and protection in ways that will help shape the law of the future.

I recognize that children's rights and interests should not necessarily be determinative. There are other values that are important. Adult rights should count for something. Impoverished community rights should count for something. Family preservation policies may serve to channel more resources into poor families and communities. Those promoting family preservation may think that these resources are essential and will serve children's interests in the long run, enabling more families to raise children free from the strains that produce maltreatment.

But children's rights and interests should count for something. If they are to be sacrificed in favor of other values, we should have honest research that illuminates just how extreme the sacrifice is. We should have research that illuminates, to the extent possible, the nature of the trade-off—what it is various groups are arguably gaining as compared to what children are losing. My instinct has long been that the gains are not that great. Family preservation support services will never be sufficient to truly empower poor families and communities. We need radical social change for that kind of empowerment. In the meantime, condemning children to suffer maltreatment is likely simply to exacerbate social injustice, creating ongoing generations of victimized children.

Professor of Law, Harvard Law School

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